August 30, 2013
On June 26th, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA). What does this portend for the future of the institution of marriage in the United States of America?
DOMA was a federal law passed in 1996. It was passed in both houses of Congress by 85 to 14 in the Senate and 342 to 67 in the House and was signed into law by President Bill Clinton.
DOMA recognized marriage as being between a man and a woman – something that previous generations wouldn’t have even had to specify – and allowed states to refuse recognition of same-sex marriages performed in other states. The law made clear that the U.S. federal government did not recognize same-sex marriage.
Section 2 of DOMA (click here for the text) says that:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.''
This was drafted to protect individual states from having gay marriage foisted upon them by other states. Section 3 defined marriage for the federal government:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.''
That’s all rather straightforward. The mere fact that such a law was passed in 1996 is proof that the demand for gay marriage by a noisy minority had already attracted enough attention in the 1990s that something had to be done about it. However, the veto-proof majorities also indicate that our lawmakers at that time (less than twenty years ago) did not recognize gay marriage.
Fast forward to 2011 when the Obama administration announced its declaration that Section 3 of the law was unconstitutional and that the administration would no longer defend it in court.
In 2013, the Supreme Court ruled on the case United States v. Windsor. This case involved a same-sex couple (two women) who had been married in Canada in 2007. (Our northern neighbor Canada adopted same-sex marriage from 2003 to 2005). One of the two women died, having willed her entire estate to the other woman, who was unable to claim federal tax exemption designed for a surviving spouse. So she took it to court, and it wound up in the Supreme Court.
So on June 26th, it was announced that the Supreme Court ruled 5-4 that Section 3 of DOMA was unconstitutional, that it was "a deprivation of the liberty of the person protected by the Fifth Amendment."
Well, here’s what the Fifth Amendment actually states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Hmm, I just can’t find anything in here about a right to same-sex marriage, nor about marriage in general. Nor do I think that James Madison and other drafters of the Bill of Rights were thinking of that in 1789. Nevertheless, here we are in 2013 and that’s what it’s being used for.
It’s amazing how, in just a few short decades, an idea almost nobody would have considered has become legalized. What’s more, those of our society who disagree with gay marriage, who question it or maybe even if you don’t celebrate it enough may be in trouble.
After the Supreme Court decision in June, the federal government has already rushed to extend full benefits to same-sex spouses of soldiers and to extend immigration benefits to same-sex spouses. And as we know, once a federal government benefit has been established, it’s well-nigh impossible to remove in today’s political environment.
But what about the states? Will states which don’t want gay marriage have it foisted upon them? Hopefully, states that don’t have gay marriage can hold the line against it. However, I think in the long run it could be difficult.
After all, the U.S. Constitution has the “full faith and credit clause” It’s in Article IV, Section 1, and it reads “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
That means that if Johnny and Susy get married in Nebraska, their marriage has to be recognized in Georgia. No problem there. However, don’t you suppose that now, if Billy and Steve get married in one state they (or an activist group representing them) would try to utilize the full faith and credit clause to eventually have all gay marriages recognized in all states? How long is this going to take?
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In fact, there have already been cases moving in that direction.
In 2007 the Tenth Circuit Court of Appeals ordered the state of Oklahoma
to issue a revised birth certificate indicating a child had two “fathers.”
(The baby had been born in Oklahoma and was adopted by a homosexual couple
married in another state).
•- In 2011, however, the state of Louisiana refused to amend a birth certificate in a similar case and won its case in a federal court.
•- In 2009, two men married in Massachusetts obtained a divorce in Texas. This case is still in litigation and pending in the Texas Supreme Court.
•- In 2011 a Texas appeals court upheld a divorce granted to a lesbian couple (who had been married in Massachusetts). This case also is pending before the Texas Supreme Court.
And what about churches? How long until churches are forced to perform gay marriages? Impossible? I hope so, but given what has already occurred, how can we rule that out?
The United States – and Western Civilization in general – is sailing in uncharted waters.
© 2013 Allan Wall - All Rights Reserved
Allan Wall recently returned to the U.S. after residing many years in Mexico.